Com. v. Lahoud

• Decision Date: 01 February 1985
• Citation: 488 A.2d 307,339 Pa.Super. 59
• Parties: COMMONWEALTH of Pennsylvania v. Joseph LAHOUD, Appellant.
• Court: Pennsylvania Superior Court

Page 307

488 A.2d 307

339 Pa.Super. 59

COMMONWEALTH of Pennsylvania v. Joseph LAHOUD, Appellant.

Superior Court of Pennsylvania.

Submitted April 30, 1984.

Filed Feb. 1, 1985.

Richard J. Jacobs, Bethlehem, for appellant.

Christopher T. Spadoni, Asst. Dist. Atty., Bethlehem, for Commonwealth, appellee.

Before SPAETH, President Judge, and WIEAND and CIRILLO, JJ.

WIEAND, Judge:

Does a trial court abuse its discretion when it refuses a defense request to exercise extraordinary steps for obtaining the presence at trial of a paid police informant who has been accepted into the federal witness protection program? We hold that there was no abuse of discretion where, as here, the defendant failed to show that the witness had information favorable to the defense.

During the summer of 1981, federal and state law enforcement agencies launched an extensive undercover investigation into an international drug trafficking operation believed to be working out of a pizza parlor located in an Easton shopping center. As part of the operation, undercover agents set up a "Game Room" next door to the pizza parlor. This "Game Room" was rented and operated by Ted Riviello, a paid police informant. Riviello and undercover narcotics agents used the "Game Room" to hold themselves out as drug dealers. In this manner they attempted to infiltrate the drug ring believed to be operating next door. Joseph Lahoud, who was not a suspect and who had previously been unknown to the police, entered the "Game Room" on November 17, 1981 and offered to sell both hashish and heroin to Riviello and his "partner," Wallace E. Mignault, an undercover agent of the Federal Drug Enforcement Agency. Mignault went with appellant to appellant's home to retrieve "samples," after which they returned to the "Game Room" with two "bricks" of hashish. Riviello broke off a piece from one of the bricks and at a later time turned it over to the proper authorities. Appellant again met with Riviello and other undercover officers on the following day, and also on November 24, 1981 and December 2, 1981, to discuss arrangements and prices for the sale of hashish and heroin. Appellant was arrested on January 15, 1982 after the drug ring operating from the pizza parlor had been broken. When Lahoud was arrested, he was found to be carrying 26 grams of hashish. He entered a plea of guilty to the possession of this hashish. However, he denied guilt and was tried on charges arising out of his prior contacts with drug agents. He defended these charges on grounds that criminality, if any, had been the product of duress and/or entrapment. A jury found Lahoud guilty of possession of hashish and possession with intent to deliver. He was also found guilty of solicitation to commit a crime and of delivering hashish. He was acquitted on charges of attempting to sell heroin.

Post-verdict motions were denied, Lahoud was sentenced to a term of probation, and this appeal followed. Although Lahoud's appeal was filed after the judgment of sentence had been imposed, the notice of appeal erroneously stated that the appeal was being taken from the order dismissing post-verdict motions. See: Pa.R.A.P. 301(c). Because the appeal is otherwise proper, we will treat this defect as harmless and proceed to consider the merits as if the notice of appeal had correctly referred to the judgment of sentence. See: Pa.R.A.P. 105(a).

Prior to trial, appellant's counsel attempted to interview Ted Riviello, only to learn that Riviello had been sentenced on unrelated state charges and had been remanded to federal custody to serve his sentence under the federal government's witness protection program. Riviello's whereabouts were known only to federal authorities. Defense counsel learned also that the Commonwealth did not intend to call Riviello as a prosecution witness. Therefore, counsel obtained a writ of habeas corpus ad testificandum directing the United States Marshall's Office to produce Riviello for trial on July 12, 1982. The Marshall refused to comply because, he said, the witness was beyond the compulsory process of the state court. On June 15, 1982, appellant's counsel requested the trial court to issue a rule to show cause why Riviello should not be produced at the trial to commence on July 12. At a hearing on June 30, an inspector employed by the United States Marshall's Office testified that Riviello was a federal prisoner and, as such, was beyond the jurisdiction of the court and would not be produced in response to compulsory process. The inspector testified that the federal government would agree to produce Riviello if, but only if, the costs of producing and safeguarding the witness were paid in advance to the federal government. These arrangements, which included elaborate security precautions, the inspector refused to describe. However, he said that the cost of an appearance for one day would be $3,602.68, and the cost of a two day appearance would be $5,101.32. The court estimated that the cost of producing Riviello as a witness at trial could rise as high as $10,000 and refused to direct the County of Northampton to advance funds to procure the presence of the witness.

"It is clear that under both our state and federal constitutions, a criminal defendant has a right of compulsory process to obtain witnesses in his favor. Pa. Const. art. I § 9. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)." Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d 624, 627 (1983). See: Commonwealth v. West, 321 Pa.Super. 329, 330, 468 A.2d 503, 504 (1983). "The right to compulsory process encompasses the right to meet the prosecution's case with the aid of witnesses, and the right to elicit the aid of the Commonwealth in securing those witnesses at trial, both of which are fundamental to a fair trial. This constitutional right, though fundamental, is not, however, absolute." Commonwealth v. Jackson, 457 Pa. 237, 243, 324 A.2d 350, 354-355 (1974) (emphasis added). See also: Commonwealth v. Allen, supra; Commonwealth v. West, supra. Accord: Ross v. Estelle, 694 F.2d 1008, 1010 (5th Cir.1983); Blaikie v. Callahan, 691 F.2d 64, 66-67 (1st Cir.1982); State v. McKnight, 191 Conn. 564, ----, 469 A.2d 397, 406 (1983); Ashley v. State, 433 So.2d 1263, 1269 (Fla.Dist.Ct.App.1983); Eubank v. State, Ind., 456 N.E.2d 1012, 1014 (1983); State v. Smith, 639 S.W.2d 677, 680 (Tenn.Ct.App.1982); Weaver v. State, 657 S.W.2d 148, 150 (Tex.Crim.App.1983). The constitutional right of compulsory process is not violated merely because a witness in a criminal case leaves the jurisdiction or is otherwise unavailable. See: United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) (witnesses deported by government); Commonwealth v. Allen, supra (invocation by witness of privilege against self-incrimination); Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (invocation by witness of privilege against self-incrimination upon advisement by prosecution); Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946) (compelled attendance excused by witness' advanced stage of pregnancy). The Constitution does not require that a defendant be given the right to secure the attendance of witnesses which he has no right to use. Commonwealth v. Jackson, supra, 457 Pa. at 243, 324 A.2d at 350, citing Washington v. Texas, supra. See: Commonwealth v. Coffey, 230 Pa.Super. 49, 52, 331 A.2d 829, 831 (1974). The constitutional right to compulsory process does not grant to a defendant "the right to secure the attendance and testimony of any and all witnesses: it guarantees him 'compulsory process for obtaining witnesses in his favor.' " United States v. Valenzuela-Bernal, supra 458 U.S. at 867, 102 S.Ct. at 3446, 73 L.Ed.2d at 1202 (emphasis in original), quoting U.S. Const. amend. VI. See: Pa. Const. art. I, § 9; Commonwealth v. Coffey, supra 230 Pa.Super. at 52, 331 A.2d at 831.

The law both in Pennsylvania and most other jurisdictions, therefore, is that "[t]he trial court has discretion on motions to secure witnesses." Commonwealth v. Sullivan, 484 Pa. 130, 135, 398 A.2d 978, 980 (1979). See: Commonwealth v. Scott, 469 Pa. 258, 264, 365 A.2d 140, 142-143 (1976); Commonwealth v. Kent, supra 355 Pa. at 152, 49 A.2d at 391; Commonwealth v. Stanton, 294 Pa.Super. 516, 525-526 n. 10, 440 A.2d 585, 590 n. 10 (1982). Accord: United States v. $64,000 in United States Currency, 722 F.2d 239, 246 (5th Cir.1984) (trial court has discretion with respect to issuance of writ of habeas corpus ad testificandum); United States v. Leon, 679 F.2d 534, 539 (5th Cir.1982) (same); Maurer v. Pitchess, 530 F.Supp. 77, 80 (C.D.Cal.1981) (same); Bolender v. State, 422 So.2d 833, 835 (Fla.1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983) (same); Eubank v. State, supra, 456 N.E.2d at 1014 (same); State v. Hines, 645 S.W.2d 88, 90 (Mo.Ct.App.1982); Goodson v. State, 564 P.2d 260, 262 (Okla.Crim.App.), cert. denied, 434 U.S. 863, 98 S.Ct. 193, 54 L.Ed.2d 137 (1977) (same); State ex rel. Amek Bin Rilla v. Circuit Court for Dodge County, 76 Wis.2d 429, 432-435, 251 N.W.2d 476, 479-480 (1977) (same).

The witness in the instant case was a paid police informant. He was also a witness which the Commonwealth had intended to use in establishing appellant's guilt. Although he clearly was in possession of information relevant to the issue of appellant's guilt, the record reveals no basis for believing that his testimony would have been favorable to the defense. Appellant's trial counsel propounded questions which she would have liked to ask Riviello, but there is no basis for believing that the answers of the witness would have been favorable to the defense. The Commonwealth had decided to forego the presence of the witness. Defense counsel, if the witness had been present under the circumstances, would not have been entitled to call the witness as of cross-examination. If he were called as...